§ 9.07 Adverse Inferences

• Jurisdiction: United States

§ 9.07 Adverse Inferences

An adverse inference can often be drawn from conduct. Such conduct is sometimes known as an "implied admission."¹⁵³ Different aspects of this issue are discussed in this section.

[A] Admissions by Conduct—Flight, Alias, etc.

Conduct of a party, such as intimidating witnesses,¹⁵⁴ may be used circumstantially to draw an adverse inference ("consciousness of guilt").¹⁵⁵ Other illustrations include evidence of false statements,¹⁵⁶ escape,¹⁵⁷ offers to bribe witnesses,¹⁵⁸ refusal to provide handwriting exemplars,¹⁵⁹ use of an alias, to name but a few.¹⁶⁰ However, the conduct is often ambiguous.¹⁶¹ Silence following the reading of Miranda warnings is another illustration, but one that raises constitutional issues, which may lead to exclusion on that basis.¹⁶²

Flight. Similarly, flight from justice may indicate consciousness of guilt. As the proverb says: "The wicked flee, even when no man pursueth; but the righteous are bold as a lion."¹⁶³ Nevertheless, the relevance of this type of evidence is often questioned by courts¹⁶⁴ because evidence of flight "as circumstantial evidence of guilt depends upon the degree of confidence with which four inferences can be drawn: (1) from the defendant's behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged."¹⁶⁵ Yet, such evidence is often admitted.¹⁶⁶

Federal Rules. The Federal Rules implicitly recognize this type of inference because several rules of exclusion assume that admissions by conduct are relevant. For example, Rule 407 makes subsequent remedial measures or repairs inadmissible if offered to prove negligence; without this exclusionary rule, the repair might be admissible as an admission by conduct.¹⁶⁷

[B] Destruction of Evidence (Spoliation)

Spoliation involves the destruction of evidence. The concept is captured in a legal maxim: "all things are presumed against a wrongdoer." It is a type of circumstantial evidence, an implicit admission of the weakness of a party's case: "A court and a jury are entitled to presume that documents destroyed in bad faith while litigation is pending would be unfavorable to the party that has destroyed the documents."¹⁶⁸ Documents destroyed in good faith, pursuant to a valid record retention policy, should not be subject to this inference.¹⁶⁹

There are other remedies in addition to the adverse inference, including criminal prohibitions,¹⁷⁰ exclusion of witnesses, discovery sanctions, dismissal of suit,¹⁷¹ and tort remedies in some jurisdictions.¹⁷²

[C] Failure to Produce Evidence

Sometimes a party's failure to produce evidence may be used to draw an adverse inference.¹⁷³ Perhaps the most familiar example is an accused's failure to testify. Commenting on an accused's failure to testify is prohibited on constitutional, not evidentiary, grounds.¹⁷⁴ This prohibition does not apply in civil cases.

[D] "Missing Witness" Rule

Similarly, a party's failure to call a presumably favorable witness may give rise to an adverse inference. Known as the "missing witness rule,"¹⁷⁵ this inference was mentioned by the Supreme Court in an 1893 case, Graves v. United States.¹⁷⁶ Nevertheless, the inference is often troublesome, especially in criminal cases.¹⁷⁷ The rule applies only when one party has superior "access" to a witness, and this is often not clear cut.¹⁷⁸ In addition, issues of surprise as well as the consumption of time entailed in bringing in witnesses to counter the inference point toward exclusion of this type of evidence.

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Notes:

^[153] Most "admissions by conduct" cases do not present hearsay problems because the conduct is not intended to be an assertion and therefore falls outside the definition of a "statement" in Rule 801(a) (sometimes known as "implied assertions"). Moreover, verbal party admissions are exempted from the hearsay rule under Rule 801(d)(2).

^[154] See United States v. Savage, 390 F.3d 823, 829 (4th Cir. 2004) ("[T]he answering machine messages were relevant evidence against Savage, as they constituted threats against a prosecution witness, indicating a consciousness of guilt."); State v. Atkinson, 774 N.W.2d 584, 594 (Minn. 2009) ("The [rap] lyrics also contained indirect references to Jordan and Guerrero, threats of violence against both of them, and insinuations that Jordan is a 'snitch' deserving of violent punishment for his testimony."); State v. McKelton, 70 N.E.3d 508, ¶ 223 (Ohio 2016) ("plans to threaten witnesses was probative of McKelton's consciousness of guilt").

^[155] See Thomas v. State, 812 A.2d 1050, 1055 (Md. 2002) ("A person's behavior after the commission of a crime may be admissible as circumstantial evidence from which guilt may be inferred. This category of circumstantial evidence is referred to as 'consciousness of guilt.'").

^[156] E.g., Wilson v. United States, 162 U.S. 613, 621 (1896) ("[F]alse statements in explanation or defense, made or procured to be made, are in themselves tending to show guilt. The destruction, suppression, or fabrication of evidence undoubtedly gives rise to a presumption inference of guilt, to...